J. Justin Wilson
J. Justin Wilson · February 14, 2019

At a press conference Wednesday, South Carolina lawmakers announced a bill that would abolish civil forfeiture. Should the bill pass, South Carolina would join just three other states—Nebraska, New Mexico, and North Carolina—that have ended this abusive police practice.

Under civil forfeiture laws, the government can permanently confiscate cash, cars, even homes, without ever filing criminal charges, much less securing a criminal conviction. Innocent owners are essentially guilty until proven innocent, and must bear the burden of proof if they want to reclaim their taken property. Worst of all, state law creates a perverse financial incentive to pursue civil forfeiture cases. In South Carolina, once property is forfeited and auctioned off, police can keep 75 percent of the proceeds, while prosecutors can take 20 percent.

“Civil forfeiture is one of the greatest threats to private property and civil liberties in the nation today,” said Institute for Justice Senior Legislative Counsel Lee McGrath. “If enacted, South Carolina’s forfeiture laws would be second only to New Mexico in safeguarding the constitutional rights of its residents. It’s encouraging to see so many lawmakers, Democrat and Republican alike, come together to defend due process.”

Sponsored by Reps. Alan Clemmons, Gilda Cobb-Hunter, and more than 70 cosponsors, the bill (H. 3968) would:

  • End civil forfeiture and replace it with criminal forfeiture;
  • Redirect forfeiture proceeds to the state general fund, ending the incentive to police for profit;
  • Require a criminal conviction to forfeit property;
  • Restore the presumption of innocence by shifting the burden of proof from innocent, third-party owners onto the state;
  • Guarantee the right to challenge a seizure’s validity in a pretrial hearing; and
  • Create a new proportionality hearing to challenge forfeitures as “unconstitutionally excessive.” The U.S. Supreme Court is currently considering a civil forfeiture case, Timbs v. Indiana, that could apply the Eighth Amendment’s Excessive Fines Clause to the states.

Critically, H. 3968 would also close a forfeiture loophole that has long circumvented state reform efforts. Through a federal program called “equitable sharing,” state and local police and prosecutors collaborate with a federal agency or joint task force, forfeit property under federal law, and receive up to 80 percent of the proceeds, even if this would do an end-run around state law. For instance, in North Carolina, between 2000 and 2013, law enforcement agencies collected over $200 million in federal forfeiture funds from equitable sharing, even though the Tarheel State doesn’t permit civil forfeiture. During that same period, South Carolina received nearly $75 million in equitable-sharing proceeds, according to the Institute for Justice.

“Closing the equitable-sharing loophole would preserve South Carolina’s sovereignty from federal overreach and ensure that state forfeiture cases are litigated under state law,” McGrath added. “South Carolina agencies could still cooperate with the federal government, but the reform would wisely limit that collaboration to major cases.”

The sweeping reform bill was spurred in part by The Greenville News and Anderson Independent Mail, which thoroughly reported on South Carolina’s civil forfeiture practices in a multi-part investigation. According to their reporting, South Carolina law enforcement seized more than $17 million between 2014 to 2016. In nearly 40 percent of cases, the owner was never convicted of a crime. And more than half of all cases involved property valued at under $1,000.

South Carolina is poised to join a growing reform movement. Since 2014, 29 states have tightened their forfeiture laws, while 15 other states are currently considering reforms.